When Even Yoo Thinks You’ve Gone Too Far
June 23, 2011

Photograph of John Yoo.

Image via Wikipedia

Monday’s New York Times had the essential op-ed regarding the legality of our war/not-war with Libya. As Yale law professor Bruce Ackerman tells it, the Office of Legal Counsel — the administration’s “authoritative voice on matters of legal interpretation” — told the president that he would have to cease military action in Libya, because to not do so would be in violation of the War Powers Act. The administration disregarded this advice and had a separate group of attorneys and advisers whip up a strained redefinition of the word “war” to justify their case that the bombing could continue unabated.

As Ackerman points out, this is actually a step or two beyond the precedent set by the Bush administration. Bush’s decision to place John Yoo within the OLC heavily compromised the quality of that office’s legal opinions, but at least the Bush-era White House never directly contravened those opinions. At worst, the OLC remained a theoretical check on the power of the president.

No longer. By flouting an OLC ruling, Obama has gone too far even for Yoo. That’s John Yoo we’re talking about folks: the guy who considers the power of the executive so expansive that the president can legally authorize child abuse.

Overruling the OLC, as Obama has, is bad enough in a vacuum. But recall that this White House also reserves the right to act based on secret interpretations of controversial laws. Which makes you wonder: if the executive branch can interpret laws in secret, and those legal interpretations are no longer subject to even internal quality control, then what’s left? Does this White House acknowledge any meaningful checks on its legal authority? What does it think the president can’t do?

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If You Can’t Win the Argument, Pretend it Doesn’t Exist
November 15, 2010

Spencer Ackerman on the Obama administration’s legal justification for drone strikes:

In March, the State Department’s legal adviser gave a speech asserting that the strikes are legal, not demonstratingwhy they are. The closest that Harold Koh came to articulating his case was to say: The administration doesn’t intentionally kill civilians (“…attacks [are] limited to military objectives and that civilians or civilian objects shall not be the object of the attack…”); it tries to be proportionate (no “attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof”); and that in any event the Authorization to Use Military Force covers the strikes. (“These domestic and international legal authorities continue to this day.”)

Exactly nowhere in Koh’s speech do the criteria emerge for determining when the administration would cross into illegality in drone targeting. (Thirty percent civilian casualties? What about forty? What about fifty?) We do not know what legal justifications the Justice Department’s Office of Legal Counsel has developed about the drone program. In March, ACLU sued to acquire those and any other justifications; the administration is fighting the disclosure.

This has become one of the favorite legal tactics of the Obama-era DoJ: when confronted over the potentiality criminality of a controversial program, they: (1) either insist that it’s legal because, well, just take our word for it (see above); (2) suggest that even challenging the legality of any actions the federal government may or may not have taken is a violation of state secrets and therefore forbidden (as they did in the case of Binyan Mohammed, who is now legally barred from suing his alleged abductors and torturers); or, my favorite, (3) insist that they’re following strict guidelines for their actions but refuse to disclose what those guidelines are (as is the case with Anwar Al-Awlaki, who the federal government reserves the right to assassinate, but only in specific circumstances to which they alone are privy).

If nothing else, I have to applaud their restraint in serving all of this with a straight face.

Crossposted at the League of Ordinary Gentlemen.

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